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Stores v. Brennan

United States District Court, W.D. Virginia, Roanoke Division

September 14, 2016

LARRY D. STORES, Plaintiff,
v.
MEGAN J. BRENNAN, POSTMASTER GENERAL, Defendant.

          MEMORANDUM OPINION

          Hon. Glen E. Conrad Chief United States District Judge.

         Larry D. Stores, proceeding pro se, filed this action against Megan J. Brennan, Postmaster General of the United States Postal Service ("Postal Service"), asserting claims of discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII"), the Age Discrimination in Employment Act of 1967 ("ADEA"), and the Rehabilitation Act of 1973 ("Rehabilitation Act"). The case is presently before the court on the Postal Service's motion to dismiss. For the reasons that follow, the motion will be granted in part and denied in part.

         Background

         At all times relevant to the instant action, Stores was employed by the Postal Service as a Maintenance Mechanic at the Roanoke, Virginia Processing and Distribution Center ("Roanoke P&DC"). On or about September 23, 2014, Stores applied for the position of Supervisor of Maintenance Operations ("Maintenance Supervisor") at the Roanoke P&DC. On December 1, 2014, Stores was notified that he was not selected for the position.

         Stores initiated contact with the Postal Service Equal Employment Opportunity ("EEO") Office on December 9, 2014. On December 17, 2014, Stores completed an Information for Pre-Complaint Counseling form, on which he alleged that he had been discriminated against based upon his race, sex, age, and unspecified disability. Stores indicated that a nondisabled, white female under the age of 40 had been selected for the position of Maintenance Supervisor, and that he was of the belief that he was more qualified for the position. Stores sent the form via priority mail on December 19, 2014, and it was received by the EEO Contact Center on December 22, 2014.

         On March 9, 2015, the Postal Service completed its informal investigation and forwarded Stores a Notice of Right to File a Formal EEO Complaint. In the Notice, Stores was instructed that he "would have 15 days from the date of receipt of [the Notice] to file a timely formal complaint." Def.'s Ex. A, Docket No. 7-1 at 78. Stores was further advised that such complaint "could be subject to dismissal in accordance with 29 CFR Part 1614.107 if not filed within the 15 day time limit." Id. Stores was told that the complaint "will be deemed timely if it is postmarked before the expiration of the 15 day time limit." Id.

         Because Stores' informal complaint cited age as one of the discriminatory factors allegedly relied upon by the Postal Service, Stores was also advised that "[t]he ADEA allows persons claiming age discrimination to go directly to court without going through an agency's administrative complaint procedures." Id. at 79. The Notice referred Stores to an enclosed PS Form 2563-B, which explained that ADEA claims could be taken directly to federal court only after filing a notice of intent to sue within 180 calendar days of the date of the alleged discriminatory action. Stores received the Notice on March 12, 2015.

         Approximately two weeks later, Stores provided written notice of his "intent to file a civil action under [the ADEA]." Docket No. 7-1 at 95. The notice was sent to the Equal Employment Opportunity Commission ("EEOC") by priority mail on March 24, 2015.

         On August 14, 2015, Stores drafted a letter clarifying that he did "not intend to file a civil action at [that] time, " but wanted to "preserve [his] right to file a civil action" in the event that the administrative process was not resolved to his satisfaction. Id. at 90. The letter was sent to the Postal Service EEO Office by priority mail on August 15, 2015.

         The Manager of EEO Compliance and Appeals responded to Stores' letter on August 18, 2015. The Manager advised Stores that the Postal Service EEO Office's records indicated that he had been provided with a Notice of Right to File a Formal EEO Complaint in March of 2015, and that no formal administrative complaint had been filed.

         On August 28, 2015, at Stores' request, the EEO Specialist assigned to his case sent him another copy of the Notice of Right to File a Formal EEO Complaint. The EEO Specialist advised Stores that the correspondence would not toll the time limits for filing a formal EEO complaint, and that if he filed a formal complaint at that time, it may be subject to dismissal for failing to comply with the applicable time limits.

         On August 31, 2015, Stores executed a formal EEO Complaint of Discrimination in the Postal Service. The formal complaint was sent via priority mail on September 3, 2015.

         On September 21, 2015, the formal complaint was dismissed on the basis that it was not timely filed. Stores appealed the dismissal to the Office of Federal Operations ("OFO"). The decision was affirmed by the OFO on February 5, 2016.

         Stores filed the instant action on March 2, 2016. Stores claims that the Postal Service discriminated against him because of his race, age, and status as a disabled veteran when it did ...


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